June 5, 2007
FRANCIS S. ELDREDGE, PLAINTIFF-RESPONDENT,
MICHAEL SKELLY AND PAULA SKELLY, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, C-193-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2007
Before Judges Cuff and Winkelstein.
In this dispute over the terms of the transfer of real property from plaintiff Francis S. Eldredge to defendants Michael Skelly and Paula Skelly, defendants appeal from the court's August 18, 2006 order granting plaintiff's motion for summary judgment, requiring defendants to pay plaintiff monetary damages plus counsel fees. We reverse.
Plaintiff owned a single-family home located at 1234 Chew Road in Waterford Township. Defendant Paula Skelly is his step-granddaughter, and Michael Skelly is her husband. Plaintiff listed the property for sale in an agreement dated February 12, 2005. He executed an addendum to the listing agreement on February 16, 2005. That addendum said:
This is to clarify the commission agreement made between Francis Eldredge and . . . Century 21 Reilly Realtors. Century 21 Reilly Realtors will only collect a commission and transaction fee of 1% of the sale price of the home if Francis Eldredge obtains the buyer for the above property. This agreement is subject to immediate family or acquaintances listed below. . . . [emphasis added.]
Paula Skelly was listed as one of the immediate family members on the addendum.
On May 3, 2005, plaintiff and defendants entered into a contract of sale (the contract) in which plaintiff agreed to sell the property to defendants. The purchase price was $225,000 to be paid as follows: upon the signing of the contract, defendants would pay plaintiff $2000; plaintiff would grant defendants a "gift of equity" in the amount of $115,000, to be credited toward the purchase price; at settlement, defendants would pay plaintiff $18,000; and, plaintiff would take back a $90,000 mortgage. Of relevance to the issues on appeal, paragraph twelve of the contract, titled "Possession, Occupancy and Tenancies," provided that "possession and occupancy will be given to Buyer [defendants] at the time of settlement." Paragraph twenty, titled "Entire Contract, No Oral Representations," stated: "This contract is the entire and only Contract between Buyer and Seller and cancels and replaces any previous agreements between them. This Contract may be changed only in writing signed by both Buyer and Seller. Any Representations or Agreements Not Contained in this Contract are of No Effect."
Despite that the contract called for possession of the property to be given to defendants at closing, plaintiff claims that defendants represented to him that he could live in the property for as long as he lived. He asserted in his answers to interrogatories that had defendants not made that promise to him, he would not have entered into the contract, but instead would have sold the property "in the open market as he originally planned to do in February 2005."
Subsequent to the execution of the contract, but before closing, the parties attempted to resolve the question of whether plaintiff would be entitled to reside in the property after title was transferred to defendants. By letter of May 18, 2005, plaintiff's attorney forwarded an "Agreement of Occupancy" to defendants' counsel. The cover letter stated: "Enclosed herewith please find Agreement of Occupancy which may satisfy everyone in this matter. If your clients are agreeable, please advise and I will send you the original." The agreement of occupancy reads, in part, as follows:
1. The OCCUPANT was the former owner of 1234 Chew Road, Waterford, New Jersey and the owner was the purchaser of 1234 Chew Road, Waterford, New Jersey.
For the sum of One ($1) Dollar Consideration:
2. The OWNER will allow the OCCUPANT to reside at 1234 Chew Road, Waterford, New Jersey, until he dies [or] is admitted into a nursing home or decides to leave the premises of his own volition, whichever occurs first.
3. If the house is sold the OWNER will agree to reside in whatever home they own until he dies, [or] is admitted into a nursing home or decides to leave the premises of his own volition, whichever occurs first.
4. The OCCUPANT will pay no money to live at the premises of the OWNER.
In response, defendants' counsel, by letter dated May 23, 2005, advised plaintiff's counsel as follows:
I received the terms of your Occupancy Agreement with Mr. and Mrs. Skelly. They are not willing to enter into any agreement that gives Mr. Eldridge the right to occupy the premises during his lifetime. They are willing to permit Mr. Eldridge to live there so long as he chooses and will take care of him for so long as he resides at the premises, but they will not enter into any written agreement that provides him with legal rights, occupancy or otherwise, to the premises.
Closing on the property took place on June 14, 2005. Neither the settlement sheet nor the mortgage contain any indication that plaintiff was entitled to occupy the property. The parties have not attached the deed transferring title to defendants as an exhibit in the appendix, but we assume from their briefs that the deed contained no reference to plaintiff's right to remain in possession of the property.
Plaintiff continued to reside with defendants until August 2005, when defendants required him to leave. In their answers to interrogatories, defendants claim numerous reasons for asking plaintiff to leave, "including but not limited to, his inappropriate and threatening behavior towards the defendants, the defendants' children, and abuse of the animals."
Defendants also assert that they had never agreed to allow plaintiff to live with them until his death. Specifically, their interrogatory answer states: "At no time did defendants agree to allow plaintiff to live with them until death. Defendants, of their own good will, and as no part of any contingency, allowed plaintiff to reside at the residence until his behavior became abusive and dangerous to defendants and their children."
On October 21, 2005, plaintiff instituted this suit in the Chancery Division. The relief he sought included setting aside the deed, removal of defendants from the premises, requiring defendants to transfer the property back to him, discharging the mortgage, and payment of counsel fees. He also sought an order requiring defendants to obtain a mortgage sufficient to pay him "the sum of $225,000.00 with interest and attorney's fees."
On May 26, 2006, based on the written discovery (the parties' answers to interrogatories), plaintiff moved for summary judgment. Between the date plaintiff filed the motion and the date the motion was argued before the court, August 4, 2006, plaintiff's counsel deposed his client, who was at the time, eighty-nine years old. The transcript of the deposition was not provided to the motion judge at the time he decided the summary judgment motion.
On August 18, 2006, in an oral decision, the trial judge concluded that plaintiff had been induced to enter into the transfer of the property based upon defendants' counsel's May 23, 2005 letter. That letter said, as we have noted, that defendants were willing to permit plaintiff to live at the property "so long as he chooses and will take care of him for so long as he resides at the premises." The judge found that the letter "was unconditional, it was clear, it was unambiguous, and, as claimed, acted as an inducement. There is no other interpretation that any rational person could make in reading that." The judge concluded that no genuine issues of material fact were in dispute, and awarded monetary damages to plaintiff in lieu of setting aside the deed.
We respectfully disagree with the trial judge's conclusion. We conclude that there are genuine issues of material fact in dispute that require a testimonial hearing.
"[A] determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). It is not the judge's function to weigh the evidence and determine the truth of what has been asserted; credibility determinations are to be made by the factfinder. Ibid. Summary judgment is only to be granted when there exists "a single, unavoidable resolution of the alleged disputed issue of fact." Ibid.
A court must be "particularly hesitant in granting summary judgment where questions dealing with subjective elements such as intent, motivation and duress are involved." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). While the construction of a written contract is generally a legal question for the court, "where there is uncertainty, ambiguity or the need for parol evidence in aid of interpretation, then the doubtful provision should be left to the jury." Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 502 (App. Div. 2000).
Plaintiff's claim here is grounded upon allegations that defendants committed equitable fraud. When a party is charged with fraud, or in any case where the subjective elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party, a conclusion from papers alone that palpably there exists no genuine issue of material fact will ordinarily be very difficult to sustain. [Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 76 (1954).]
Applying the law to the facts here, we conclude that there were simply too many material facts in dispute that required the court to determine the parties' intent to have warranted summary judgment. For example, the contract is silent as to any right of plaintiff to remain in possession of the property. On the contrary, it specifically indicates that possession of the property would be transferred to defendants at the time of settlement. The contract further provides that it constituted the entire agreement between the parties, replacing any previous representations, either in writing or oral. Thus, issues remain as to whether defendants promised plaintiff orally or in writing that he could remain in the property, and, if so, whether that promise remained in effect given the language of the contract.
The trial court relied on the May 23, 2005 letter from defendants' counsel to plaintiff. The judge found that the letter was clear in its intent to permit plaintiff to remain in occupancy of the premises after title to the property was transferred to defendants. We do not consider the letter to unambiguously call for such a result. The letter was not only externally inconsistent with the terms of the contract, but internally inconsistent in that it indicated that defendants were "not willing" to enter into any agreement giving plaintiff the right to occupy the premises during his lifetime, but "they are willing" to permit him to "live there so long as he chooses and will take care of him for so long as he resides at the premises, but they will not enter into any written agreement that provides him with legal rights, occupancy or otherwise, to the premises." Defendants' intent as to plaintiff's right to continue to live in the property after closing is anything but clear from the plain language of the letter.
The parties took diametrically opposite positions in their answers to interrogatories concerning plaintiff's entitlement to remain on the property following closing. Plaintiff claims he would not have entered into the contract if he was not given that right; defendants claim it was only out of "their own good will" and not "part of any contingency" that they permitted him to stay after they took title. This disputed issue is not amenable to summary judgment.
We also observe that the trial court made no reference to the burden of proof. To prove equitable fraud, a plaintiff must demonstrate a "material misrepresentation made with intent that it be relied on, coupled with actual detrimental reliance." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). A party claiming equitable fraud must prove his or her claim by clear and convincing evidence. Diabo v. Kirsch, 316 N.J. Super. 580, 588 (App. Div. 1998). And, notably, it is not altogether clear if plaintiff is relying on defendants' oral or written representations that he could remain in the property. If the former, that too may require a clear and convincing burden of proof. See generally, Statute of Frauds, N.J.S.A. 25:1-5 to -16.
Consequently, we conclude that there are genuine issues of material fact in dispute that require a trial. We therefore reverse and remand for further proceedings consistent with this opinion. On remand, the trial court may, in its discretion, consider such additional proofs, including plaintiff's deposition testimony, as the court may deem appropriate.
Reversed and remanded.
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